The government has finally published an amendment that will ban the ‘sex game gone wrong’ defence from courts in England and Wales. Here’s why that matters.
‘She asked for it’ is a phrase likely to send a chill down the spines of most women. The idea that female victims of sexual violence are ultimately responsible for their own pain – that they must, in fact, have invited it, through their actions or manners or clothing – is one that’s been deployed for generations to let male perpetrators of said violence off the hook. And there is another ugly, newer version of the ‘she asked for it’ defence: the idea of the ‘sex game gone wrong’.
Also known as the ‘rough sex’ defence, this legal argument has been used at least 60 times in cases involving the deaths of women in the UK since the 1970s, or in foreign trials concerning the deaths of British women. Recent years have seen a disturbing rise in its popularity: since 2010, it’s been used to explain the deaths of at least 28 women, compared to 17 women the previous decade.
According to the campaign group We Can’t Consent To This, claiming a dead woman’s injuries were sustained during sex ‘gone wrong’ can be an effective way for men to escape justice. The grassroots organisation’s research shows that in 45% of cases where this defence was used, men have been given a lesser charge of manslaughter, received a lighter sentence or escaped conviction entirely.
Now, though, the rough sex defence is set to be banned. Following a prolonged campaign by We Can’t Consent To This with the backing of a cross-party group of MPs, the government has published a new clause to the domestic abuse bill that will prohibit the use of “consent for sexual gratification” in English and Welsh courts as a defence for causing serious harm. The amendment will mean that defendants cannot claim a victim consented to being seriously injured or killed during sex.
It’s a historic moment, and one that is rightly being hailed by campaigners. (Labour MP Harriet Harman, who co-created the amendment, said that it “will stop men literally getting away with murder by saying it’s what she wanted”.) One of the biggest flaws in the rough sex defence was always that in cases where a woman had died, it was impossible to know if consent had truly been present: dead women cannot tell a court whether they agreed to certain sexual acts.
Instead, we were left with the words of the men involved in their deaths. The ‘sex game gone wrong’ defence relied on the idea that the line between consensual rough sex and lethally violent sex is blurry; that it is understandable that a man could accidentally cross it. But anyone who has enjoyed healthy, consensual, communicative sex of any kind – from the gentlest vanilla to the most extreme BDSM – knows that this is nonsense. There are oceans, worlds, lightyears between a woman asking to engage in safe breath play or to be restrained during sex and a woman agreeing to being treated so brutally that she dies. The notion that women who enjoy rough sex must therefore consent to fatal injuries is patently absurd.
The argument fitted with a pattern also seen in some rape trials: victims’ sexual pasts and proclivities being dredged up by prosecutors in the hope of convincing jurors that they must have consented to the incident in question. (The Ministry of Justice rejected calls to ban the practice of cross-examining rape complainants about their sexual histories in 2017.)
It’s a borderline Victorian attitude, suggesting that women who have been enthusiastic about sex in the past should not be taken seriously when they claim to have said no. But at rape trials, complainants are at least given the opportunity to speak out and defend themselves. The same opportunity was not afforded to women who were killed in cases where the rough sex defence was later used.
Crucially, the rough sex defence wasn’t just problematic when it succeeded in securing a lesser charge or acquittal for a defendant. The publicising of lurid allegations about a victim’s sexual interests can be devastating to those who loved her, even if her killer is ultimately found guilty of murder: just look at the case of Grace Millane, the 22-year-old British backpacker killed by an unnamed man in New Zealand last year.
Millane’s murderer claimed that she died accidentally after asking to be strangled during sex, a defence that was rejected by jurors. Yet her family still had to listen to details of her alleged sexual preferences being discussed in court – details that were subsequently reported around the world.
“It felt like Grace was on trial, yet not able to defend herself,” Hannah O’Callaghan, Millane’s cousin, told the BBC. O’Callaghan has welcomed the news that the rough sex defence is set to be banned in UK courts, saying that it will prevent other families from having “to sit and listen to only one side of the story while the victim is re-victimised and does not get the chance to tell their side”.
The amendment will become law when the domestic abuse bill is passed later this year. This is a victory for consent campaigners – and a victory for women.
If you, or anyone you know, has experienced sexual violence, you can call the Rape Crisis national helpline on 0808 802 9999 for advice and support (open 12- 2.30pm and 7-9.30pm daily). You can also find your nearest Rape Crisis centre here and visit the website for more information here
This article was first published on 18 June 2020, when the government promised to ban the use of the ‘rough sex’ defence from courts in England and Wales. It was updated on 1 July 2020 to reflect the publication of the clause in the domestic abuse bill.
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